Thursday, June 18, 2015

All that is solid melts into air: photog loses claim against Nike Jordan photo and logo

Rentmeester v. Nike, Inc., No. 3:15-cv-00113 (D. Ore. Jun.
15, 2015)

Rentmeester shot a photo of then-North Carolina student
Michael Jordan for a 1984 issue of LIFE magazine.Instead of a conventional gym shot,
Rentmeester photographed Jordon outdoors, “on a relatively isolated grassy hill
with no visual distractions other than the setting sun and a basketball hoop he
had temporarily installed on the hill.”He wanted an untraditional pose, so he instructed Jordan “to jump
straight up and perform a grand jeté, a ballet leap, while holding a
basketball.”Rentmeester argued that he
was the first person ever to photograph a basketball player in this specific
pose.In his view, “the creative genius
of the pose, and the overall construction of the image, is to trick the viewer
into thinking that Mr. Jordan is actually performing a dunk when in fact he is
not.” To get this effect, Rentmeester put his camera approximately 90 degrees
to Jordan’s apparent trajectory and slightly below, creating an effect of
looking up at Jordan.To get precise
detail, Rentmeester used a very rapid shutter speed and powerful synchronized
strobe lights.

Rentmeester photo in LIFE

LIFE published the photo just when Nike was preparing to
launch its endorsement relationship with Jordan, and Nike contacted Rentmeester
to request color transparencies of the photo. He agreed to lend them to Nike for $150, “for
slide presentation only, no layout or any other duplication.” Nike created a
similar photograph and displayed it on billboards and posters.Rentmeester objected, and the parties
negotiated a limited and temporary use of the Nike photo—Nike paid $15,000 for
a two-year license, but Nike continued to use the photo on a wide variety of
billboards, advertisements, and merchandise. In 1987, Nike began using the
Jumpman Logo on all of its Jordan Brand merchandise.

﻿﻿

Nike's Jordan photo

Nike's Jumpman logo

Rentmeester sued for copyright infringement, and lost—finally,
a ruling that replicates what we should’ve gotten out of the Obama HOPE
litigation.

What qualifies as substantial similarity depends on the
underlying facts, and the Ninth Circuit uses a sliding scale depending on the
works at issue. From Mattel,
Inc. v. MGA Entertainment, Inc.:

If there’s a wide range of
expression (for example, there are gazillions of ways to make an aliens-attack
movie), the copyright protection is “broad” and a work will infringe if it’s
“substantially similar” to the copyrighted work. If there’s only a narrow range
of expression (for example, there are only so many ways to paint a red bouncy
ball on blank canvas), the copyright protection is “thin” and a work must be
virtually identical to infringe.

(Based on the language of this excerpt, I’ll give you three
guesses who wrote the opinion, and the first two don’t count.)So the key inquiry was whether Rentmeester’s
photo involved a wide or narrow range of expression.The court rejected Nike’s claim that
virtually all photos had thin protection.Rather, to determine the breadth of copyright protection in a work, a
court must decide “what idea is being expressed by the artist,” and that idea
is unprotected. “The breadth of protection afforded to a particular expression
is determined by the number of possible expressions of the idea.” The key question is always whether the works
are substantially similar beyond
depicting the same idea.Substantial
similarity can’t be based on similarity in unprotectable elements.

What is the idea of the Rentmeester photo?His counsel argued that it was “basically the
task that Mr. Rentmeester was charged with,” but the court disagreed; that
would let broad copyright protection be created out of thin air by broad
commissions.Instead, the court went with
“what idea the creator of the work was trying to express when she created the
copyrighted work.”That was, as Rentmeester’s
own claims made clear, that of,“Michael Jordan in a gravity- defying dunk, in a
pose inspired by ballet’s grand-jeté.”

The next step was to determine the range of possible ways to
express that idea.There were more than
a few ways to do so, and less than a gazillion.There were technically an infinite number of perspectives from which the
photo could have been taken, but practically there were only “ten to fifteen” materially
different perspectives available.Likewise,
there were only a handful of materially different lighting possibilities.Photos involving a specific pose don’t
necessarily receive categorically thin protection, but the idea in this case
was closer to the “red bouncy ball on canvas” idea than “aliens-attack movie,”
and therefore the copyright was thin.

Then, the court filtered out the unprotected elements: the
basketball hoop, the basketball, a man jumping, Mr. Jordan’s skin color, and
his clothing. Rentmeester argued that
his particular arrangement of these unprotected elements was protected, and
this is in general true.However, given
the idea of “Michael Jordan in a gravity-defying dunk, in a pose inspired by
ballet’s grand-jeté,” there was “nothing original about the selection and
arrangement of having a Michael Jordan jump with a basketball in the vicinity
of a basketball hoop—that is all scenes a faire for the idea at issue.”The only arguably original part was taking
the photo outside, but a lot of basketball is played outside.

Rentmeester also sought protection for the pose.Even if the idea of the pose was original,
that doesn’t let him control it with copyright.“The law draws no distinction between original and unoriginal ideas.”However, the actual expression of the idea in
a pose could be protected, but there were material differences between the two
photos in their expression of the pose.Rentmeester’s photo showed Jordan’s right arm bent at the elbow; Nike’s
showed his right arm extending straight down and away from the basket. In the Rentmeester photo, Jordan’s arm was
bent slightly backwards while in the Nike photo it was fully extended and depicted
above the basket. In the Rentmeester photo, Jordan’s legs were positioned as if
he were jumping while running forward (a traditional grand-jeté). “His legs are
apart like a scissor split, nearly creating a straight line.” In Nike’s photo, Jordan’s
legs were positioned as if he had jumped up vertically and spread his legs wide
in a straddle position, creating a “V” as opposed to a straight line. Given the thinness of the copyright at issue,
no reasonable jury could find substantial similarity between the two photos.

After the filtering was complete, all that was left was
either (1) “two photographs taken at a similar angle, one of a grassy hill with
a blue sky background and a setting sun, and the other of the skyline of
Chicago with a red and purple sky background”; or (2) that, plus Jordan in a
grand-jeté pose.In the first view it
would be a stretch to find the photos similar at all; in the second, all that
was added was an element that was not itself substantially similar in the two
photos.Adding in Jordan would also add
in other differences—Jordan’s scale and placement differed in the photos; also,
in the Rentmeester photo the viewer can clearly see the hill Jordan jumped
from, while in the Nike photo there was no depiction of where he jumped from, “but
rather he appears as though he is flying over the skyline of Chicago.” These
many differences overcame the similarity of the photos from similar angles.

Once that conclusion had been reached, the noninfringing
nature of the Jumpman logo followed as well.The only similarity with the Rentmeester photo was in the idea of a grand-jeté
pose—“the Jumpman Logo is nothing more than an expression of the pose.” DMCA false copyright management information
claims under §1202 also failed because there was no infringement and Nike
couldn’t be faulted for claiming it owned the copyright in its works.

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